Vogeler, Alan R.

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University of Kentucky

Kentucky Law JournalVolume 28 | Issue 4 Article 111940Administrative Law--The Abolition of the NegativeOrder DoctrineAlan R. VogelerUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Administrative Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Comment is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky LawJournal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationVogeler, Alan R. (1940) "Administrative Law--The Abolition of the Negative Order Doctrine," Kentucky Law Journal: Vol. 28 : Iss. 4 ,Article 11.Available at: https://uknowledge.uky.edu/klj/vol28/iss4/11CASE COMMENTSADMINISTRATIVE LAW-THE ABOLITION OF THE NEGATIVEORDER DOCTRINEThe Communication Act of 19341 provided that the Federal Com-munications Commission should not have jurisdiction over carriersengaged in interstate commerce solely through physical connectionswith the facilities of another carrier, unless they are under the controlof such carrier. In order to obtain knowledge of communication prac-tices, the Commission required all telephone carriers subject to theAct to file certain statements. Plaintiff, engaged in interstate com-merce solely through physical connection with the New York Tele-phone Company, refused to comply on the ground that it was not underthe control of the New York Company. After a full hearing, the Com-mission determined that plaintiff was under New York control andordered it classified as subject to all telephone carrier provisions ofthe 1934 Act. In the District Court, Plaintiff's appeal from this orderwas dismissed on its merits, and a further appeal was made to theSupreme Court. On the latter appeal the Commission contended thatsince the order classifying Plaintiff as subject to its jurisdiction wasa "negative order", it was not subject to judicial review. The Court- (opinion by Mr. Justice Frankfurtler) abolished the doctrine of nega-tive orders and held the order subject to review, although the appealwas dismissed on the merits.2The doctrine that negative orders of an administrative body arenot subject to review by the judiciary was first announced in the caseof Proctor & Gamble v. United States.3 In that case the plaintiff hadapplied to the Interstate Commerce Commission for an order forbiddingthe carriers to continue certain demurrage charges. The plaintiff'sapplication was denied, and it finally appealed to the Supreme Court,which held that such an order Was not reviewable because it was nega-tive. The court determined that the words "any order" in the statute 4conferring power of review to the judiciary gave the courts power toset aside or enjoin only such orders as they might enforce. Thus theapparent origin of the doctrine was a matter of statutory construction,the court interpreting the words "any order" to exclude a refusal bythe administrative body to grant relief. The reason impelling thedecision, however, was a desire to achieve a proper adjustment ofgovernance between the administrative and judicial authority in order147 U. S. C. A. Sec. J52 (b)."Rochester Telephone Corp. v. U. S., 307 U. S. 125, 59 S. Ct. 754,83 L. ed. 1147 (1939).-225 U. S. 282, 32 S. Ct. 761, 56 L. ed. 1091 (1912).436 Stat. 1087, 1148; See. 207 of the Judiciary Act of March 3, 1911.CASE COMMENTSproperly to carry out the purposes for which the administrative bodywas created.5After Proctor & Gamble v. United States, numerous cases followedthe negative order doctrine. 6 Mr. Justice Frankfurter classifies theseeases as follows:7"1) Where the action sought to be reviewed may have the effectof forbidding or compelling conduct on the part of the personseeking to review it, but only if some further action is takenby the Commission. ..."2) Where the action sought to be reviewed declines to relieve thecomplainant from a statutory command forbidding or com-pelling conduct on his part. . .9"3) Where the action sought to be reviewed does not forbid orcompel conduct on the part of the person seeking review butis attacked because it does not forbid or compel conduct by athird person....xoBut even under such a classification the distinction between affirmativeand negative orders is a tenuous one.n For example, in two cases withsimilar facts, opposite decisions were reached."5 225 U. S. 282, 294-298. Mr. Justice Frankfurter brings this outIn the Rochester case, 307 U. S. 125, 137, 59 S. Ct. 754, 760, 83 L. ed.1147, 1156 (1939). At first glance it appears that the Rochester case,by abolishing a doctrine which limited judicial review, widens theextent of judicial control of administrative action. To the effect thatsuch control is not broadened, see infra n. 16.6 Hooker v. Knapp, 225 U. S. 302, 32 S. Ct. 769, 56 L. ed. 1099 (1912);Lehigh Valley Ry. v. U. S., 243 U. S. 412, 37 S. Ct. 397, 61 L. ed. 819(1917); Great Northern Ry. v. U. S., 277 U. S. 172, 48 S. Ct. 466, 72L. ed. 838 (1928); Piedmont & N. Ry. v. U. S., 280 U. S. 469, 50 S. Ct.192, 74 L. ed. 551 (1930); Standard Oil v. U. S., 283 U. S. 235, 75 L. ed.999 (1931); U. S. v. Griffin, 303 U. S. 226, 58 S. Ct. 601, 82 L. ed. 764(1938); Diamond Tank Transport v. I. C. C., 23 F. Supp. 497 (D. Wash.1938), aff'd 305 U. S. 567, 59 S. Ct. 243, 83 L. ed. 436 (1939).307 U. S. 125, 129, 59 S. Ct. 754, 756, 83 L. ed.. 1147, 1152 (1939).'For example, where an attempt is made to review an I. C. C.valuation: 307 U. S. 125, 129, 59 S. Ct. 754, 756, 83 L. ed. 1147, 1152(1939).9 For example, where the I. C. C. denies permission to depart fromthe long-short haul clause; 307 U. S. 125, 129, 59 S. Ct. 754, 756, 83 L. ed.1147, 1152 (1939).10 For example, where a shipper requests the I. C. C. to order acarrier to adopt certain rates, which the Commission declines to do:307 U. S. 125, 130, 59 S. Ct. 754, 757, 83 L. ed. 1147, 1152 (1939). Fora specific discussion of whether the various classes of negative ordersare correctly interpreted, and a discussion of what cases are includedin the categories, see McAllister, Statutory Roads to Review of FederalAdministrative Orders (1940), 28 Calif. L. Rev. 129, 139-143; Notes(1939) 24 Wash. U. L. Quar. 591, (1940) 24 Minn. L. Rev. 379." Rochester Telephone Corp. v. U. S., 307 U. S.. 125, 140, 59 S. Ct.754, 762, 83 L. ed. 1147, 1158 (1939).2 Compare Pacific Power and Light Co. v. Fed. Power Com'n, 98F. (2d) 835 (C. C. A. 9th 1938), aff' 307 U. S. 156, 59 S. Ct. 766,83 L. ed. 1180 (1939), with Newport Electric Corp. v. Fbd. Power Com'n,97 F. (2d) 580 (C. C. A. 2d 1938), where on essentially similar facts(application for a license to merge public utility after a showing ofpublic convenience and necessity) refusal of the Commission to grantKENTUCKY LAW JoURNALIn the Proctor & Gamble case Mr. Justice White apprehended thatjudicial review where the Interstate Commerce Commission had refusedto give relief would be an invasion of the administrative function, andtherefore the courts should not review that refusal. 3 The decision,doctrinalized and mechanically followed, ignores the fact that wherea negative order of the administrative agency substantially affectsrights, judicial review of such order is no more an invasion of theadministrative power than where the order is affirmative in form.14The negative order doctrine, evolved to effectuate the board con-siderations compelling independent administrative judgment, has tor-tured those considerations into a technical matter of form which nolonger is concerned with the proper distribution of governmentalpower between the judiciary and administrative bodies, but merelywith the language in which the administrative agency's order hasbeen couched." Because of this, the doctrine is better done away withif the courts are able, without it, consciously to achieve the resultsoriginally desired. 6 A proper coordination of administrative andjudicial activity can be attained by the doctrines which Mr. JusticeFrankfurter in the principal case terms "primary jurisdiction"'7 and"administrative finality".'%a license was held in the first case reviewable as an affirmative order,and in the second, non-reviewable as negative. Commented upon at(1939) 52 Harv. L. Rev. 522 (written while Mr. Justice Frankfurterwas professor of administrative law at Harvard, and suggesting thenegative order doctrine be abolished as unnecessary. The note pointsout that the doctrine is a matter of form rather than substance. Inthe Rochester case, Mr. Justice Frankfurter explains that the doctrineis merely a matter of form. 307 U. S. 125, 142, 59 S. Ct. 754, 763, 83I. ed. 1147, 1159 (1939).1 Proctor and Gamble v. U. S., supra n. 4.11 See to that effect: Notes (1938) 47 Yale L. Jour. 766, 787, (1939)52 Harvard L. Rev. 522.lpra n. 12.That theories of "administrative finality" and "primary jurisdic-tion" as used by Mr. Justice Frankfurter will achieve the same results,see: Notes (1938) 51 Harvard L. Rev. 1251 (1939) 18 Chicago-KentL. Rev. 74, 89, (1939) 52 Harvard L. Rev. 522, (1939) 25 Virginia L.Rev. 981, (1939) 24 Wash. U. L. Quar. 591, 594-595, (1940) 28 Calif.L. Rev. 129, (1940) 24 Minn. 379, 384. Mr. Justice Frankfurter so statesin the principal case, 307 U. S. 125, 140, 59 S. Ct. 754, 763, 83 L. ed. 1147,1158 (1939). But see Notes (1939) 53 Harvard L. Rev. 98, (1940) 15Indiana L. Jour. 151.27 By "primary jurisdiction" Mr. Justice Frankfurter means arecognition by the courts of administrative competence to decide tech-nical matters which the statutes allocate to administrative agencies.307 U. S. 125, 139, 59 S. Ct. 754, 761, 83 L. ed. 1147, 1157 (1939). Andsee Note (1938) 51 Harvard L. Rev. 1251. Thus where a shipper suesa carrier to recover charges allegedly in excess of a reasonable rate,which charges had been filed with the Interstate Commerce Commis-sion, the shipper must first apply for relief to the Commission, andcan not resort to the courts in the first instance. Texas & Pacific Ry.v. Abilene Cotton Oil Co., 204 U. S. 426, 27 S. Ct. 350, 51 L. ed. 553(1907); I. C. C. v. Louisville & N. Ry., 227' U. S. 88, 93, 33 S. Ct. 185,187, 57 L. ed. 431 (1913). For further discussion of "primary jurisdic-CASE COMMENTSMr. Justice Butler, concurring in the result in the instant case,complains that this does not seem to be the proper occasion forabolishing the negative order doctrine. " Whether or not this is so, thedoctrine has rightly been repudiated.Anw R. VoGormCONSTITUTIONAL LAW-JUDICIAL REVIEW OF LEGISLATIVEDETERMINATION AS TO FACTThe state constitution' authorized the general assembly to estab-lish new judicial districts "having due regard to territory, business,and population." A new district was established by the legislatureand suit was brought to enjoin the newly appointed judge thereof fromdischarging any of the duties of his office, on the ground that the gen-eral assembly failed to exercise due regard for territory, business, andpopulation. Defendant demurred to the petition, alleging that thecourt had no authority to review the legislative finding as to thosefacts. The demurrer was overruled on the basis that it was the dutyof the court to determine whether the actual facts justified the crea-tion of the new district. Willis v. Jonson, 275 Ky. 538, 121 S. W. (2d)904 (1938). 2The Kentucky court apparently decides whether or not it willreview the legislative determination of fact, by investigating whetheror not the act was passed in pursuance of an express authority or dutygranted or placed upon the General Assembly by the Kentucky Con-stitution. If the legislature has power to act only in certain con-tingencies, the court will look to see if such contingency exists; 3 buttion", see McAllister, Statutory Roads to Review of Federal Adminis-trative Orders, (1940) 28 Calif L. Rev. 129, 143-150; Note (1939) 18Chicago-Kent L. Rev. 74, 79 et seq.' By "administrative finality" Mr. Justice Frankfurter means thatfindings of fact of an administrative agency will be conclusive as tosuch facts. 307 U. S. 125, 142, 59 S. Ct. 754, 763, 83 L. ed. 1147, 1159(1939). Thus, where the Interstate Commerce Commission determinesthat a reshipping privilege granted by a carrier is an undue preferencenot allowed by law, the court has no power to disturb that finding.U. S. v. Louisville & N. fy., 235 U. S. 314, 35 S. Ct. 113, 59 L. ed. 245(1914). Accord: L C. C. v. Illinois C. Ry., 215 U. S.. 452, 30 S. Ct. 155,54 L. ed. 280 (1909); I. C. C. v. Union P. fy., 222 U. S. 451, 32 S. Ct.108, 56 L. ed. 308 (1911). For further discussion of "administrativefinality" see McAllister, Statutory Roads to Review of Federal Adminis-trative Orders, (1940) 28 Calif. L. Rev. 129; Note (1939) 13 Chicago-Kent L. Rev. 74.1'Rochester Telephone Corp. v. U. S., 307 U. S. 125, 146, 59 S. Ct.754, 765, 83 L. ed. 1147, 1161 (1939).Ky. Const., Sects. 128 and 132.2On a second appeal the court reviewed the evidence upon whichthe Legislature acted, and finding that it did not contradict the con-stitutional provision, affirmed the decision of the trial court. Willisv. Jonson, 279 Ky. 416, 130 S. W. (2d) 828 (1939).3 Zimmerman v. Brooks, 118 Ky. 85, 80 S. W. 443 (1904); Raglandv. Anderson, 125 Ky. 141, 100 S. W. 865 (1907); Scott v. McCreary,148 Ky. 791, 147 S. W. 903 (1912); Nolan v. Jones, 215 Ky. 2&8, 184S. W. 1054 (1926).

Administrative Law--The Abolition of the Negative Order Doctrine

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Administrative Law--The Abolition of the Negative Order Doctrine

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